FILE - In this May 14, 2013, file photo, the Department of Justice headquarters building in Washington is photographed early in the morning. The Drug Enforcement Administration does a poor job overseeing the millions of dollars in payments it distributes to confidential sources, relies on tipsters who operate with minimal oversight or direction and has paid informants who are no longer meant to be used, according to a government watchdog report issued Thursday, Sept. 29, 2016. . (AP Photo/J. David Ake, File)

The Justice Department argued Title VII doesn't cover 'discrimination based on sexual orientation'

By Camila DeChalus

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July 27, 2017 12:06 PM EDT

The Justice Department filed an amicus brief Wednesday claiming that Title VII of the Civil Rights Act of 1964 does not cover "discrimination based on sexual orientation."

The department filed the brief in the U.S. Court of Appeals for the 2nd Circuit in the lawsuit of now-deceased Donald Zarda, a skydiving instructor who claimed he was fired by his employer Altitude Express after he disclosed his sexual orientation to a customer.

Zarda filed a lawsuit in 2010 under Title VII, a federal law under the Civil Rights Act of 1964 that prohibits employers from discriminating against employees based on race, color, sex, national origin or religion.

In April, a three-judge 2nd Circuit panel dismissed Zarda's case, citing a prior court ruling that concluded discrimination against gay workers is not a form of sex discrimination under Title VII.

Zarda died in a skydiving accident a few months after he filed the lawsuit, but the executors of his estate continued the lawsuit on his behalf and asked the higher court to review the case.

"The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination. It does not, as has been settled for decades. Any efforts to amend Title VII's scope should be directed to Congress rather than the courts," according to the DOJ's brief.

The department concluded that "Title VII does not prohibit discrimination because of sexual orientation."

Title VII has been a highly contested issue in lower federal courts over the past few years.

In March, the 11th Circuit Court of Appeals found that Title VII does not cover discrimination based on sexual orientation. But nearly a month later the 7th Circuit Court of Appeals in Chicago ruled that the Civil Rights Act prohibits workplace discrimination against LGBT employees.